Lynch v Kinney Shoes

SUPREME COURT OF QUEENSLAND

CITATION:

Lynch v Kinney Shoes & Ors [2004] QSC 370

PARTIES:

ALLOUISE JOAN LYNCH
(Plaintiff)
v
KINNEY SHOES (AUSTRALIA) LIMITED
ACN 004 327 566
(First Defendant)
AND
VENATOR GROUP AUSTRALIA LIMITED
ACN 004 327 566
(Second Defendant)
AND
COLORADO GROUP LIMITED
ACN 004 327 566

FILE NO/S:

S183 of 2002

DIVISION:

Trial

PROCEEDING:

Claim for damages

ORIGINATING COURT:

Supreme Court

DELIVERED ON:

29 October 2004

DELIVERED AT:

Townsville

HEARING DATE:

18-19 October 2004

JUDGES:

Cullinane J.

ORDER:

Judgment for the defendants against the plaintiff with costs to be assessed.

CATCHWORDS:

TORTS — OCCUPIER’S LIABILITY — NEGLIGENCE — SHOP OWNER — whether breach of duty of care — where plaintiff suffered injuries due to fall in shoe store — where shoe racks were placed on shop stand — whether risk of injury was foreseeable to plaintiff

Hackshaw v Shaw (1984) 155 CLR 614 at 622-623
Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 at 488

COUNSEL:

Mr Drew for the plaintiff
Mr King-Scott for the defendants

SOLICITORS:

Roati & Firth Lawyers for the plaintiff
McInnes Wilson Lawyers for the defendants

1. The plaintiff has instituted proceedings against the three defendants claiming damages for personal injuries suffered by her on 15 March 1999.

1. On that day the plaintiff tripped and fell upon the floor of premises at which a business “Mathers for Shoes” was conducted at a shopping complex known as Stockland Plaza at Townsville.

1. The defendants were jointly represented.  It is admitted that the first defendant was the registered lessee of the relevant premises and I was informed that it was the first defendant who should be treated as the occupier of the relevant premises.

1. The plaintiff was born on 13 January 1974.  She is a married woman with two children, one almost four and the other fourteen months.

1. She was educated to grade 12 level at school and upon leaving school undertook a hairdressing apprenticeship which she completed in 1995. 

1. On 15 March 1999, she and her mother-in-law had travelled from Ingham where they lived to Townsville where they intended shopping.  One of their purposes in doing so was to buy a pair of shoes and a handbag for the plaintiff’s mother-in-law.  The plaintiff’s brother-in-law was shortly to be married.

1. After attending some other shops they went to Stockland Plaza Shopping Centre and at mid-afternoon found themselves at the Mathers for Shoes Store.

1. There are photographs in the report of an engineer, Mr Kahler (exhibit 1(a)) which show the shop in the premises.  It is not suggested that these show the premises internally as they were but photograph number 1 is an external view showing the entrances to the shop.  The entrance which the plaintiff and her mother-in-law entered is marked with an “A” on that photograph.

1. As they entered the store the plaintiff’s attention was drawn to a pair of shoes situated upon a stand against the back wall of the shop.  She focussed her attention upon these shoes and commenced to walk…